“It may be a reflection on human nature that such devices should be necessary to control the abuses of government,” Madison said:
But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
That quote was used in an article discussing the conservative bias against ‘judicial activism’ and the conservative bias towards accepting prior decisions ‘versus’ the libertarian position that the Constitution is specifying a government that fosters freedom to the maximum extent consistent with people and their society. That assumption means that any increase in that base power of the state, e.g. any law, is presumed to be invalid in any challenges, the burden of proof is against the Congress and Administration in its enforcement.
The author concludes that the conservatives have the best argument, that judges must control the system but cannot do so via expansive interpretations of law or Constitution.
Call me an extremist, but I think they are both right. It seems to me that the Libertarian’s position is correct, assuming that the situation is solvable and the decision is based upon carefully reasoned opinions fully discussed in all contexts and possible ramifications. The Madison position is not inconsistent with that, except for ‘carefully reasoned opinions fully discussed in all contexts and possible ramifications’. They are correct that judges don’t always meet that standard.
But mortal, fallible, limited humans can never meet that standard, thus legal reviews of higher courts, Congressional approval of judges in a political process, and Amendments to the Constitution. The problem is the breakdown of the system enabled by the judges very slack interpretation of ‘A constitution of liberty’ being what the Constitution specified and enabled. They have been far too accepting of government power, and modern ‘conservatives’ have largely accepted that, the liberals are just the point guard, the ‘conservatives’ ultimately follow their thinking in most areas.
Increasing government power is increasing centralization. To centralize is to set yourself up for failure because your system has stopped evolving, because one size does not fit all and the world around continues to change. The US government and society has centralized itself into failure.
The Constitution prescribed an evolutionary system that provided a government based on the best human judgement of how to run a society as anyone knew knew how to do in 1776, with the fitness function being the judgement of the common man. Freedom was always the way forward, any further laws were to be for the common good, subject to an interpretation of the Constitution in which all decisions were to favor increasing the liberty of the people.
Modern interpretations of the Constitution allow the evolution of the modern ‘progressive’, even ‘liberal’, view of government being whatever they can get away with, given control of the media, education system, appointments to the Courts and large blocks of voters on welfare, corporate and social.
Forget Constitutional arguments, this is a meta-Constitutional problem. Our system of government is no longer capable of maintaining boundaries around itself, it has metastasized, escaped control of Constitutional feedback systems. Systems operating outside of the range where feedback can correct deviations from the desired state are not stable.
The US government is no longer a stable system, the many causes of that underlie this crisis of civilization that is upon us. Understand the base causes of our problem, and perhaps we can solve it.
The way we solve it is via our own auxiliary precautions.
This modern age has added very much to the complexity of economic and social calculations by the centralization and resulting rules and regulations. Centralization == stultification by rules and regulations of ever-increasing complexity because of the continual proliferation of interactions. What used to be a problem of different laws in different jurisdictions is now N! special cases laws in a common jurisdiction.
The web of subsidies and taxes and laws and educations distorts prices of everything so much we have no clue how much anything ‘really’ costs, it is all as ephemeral as the value of work in process, allocation of overheads, etc. All those make it very difficult to make rational decisions, to plan, based on the ‘real cost’ of anything
We can’t make intelligent decisions about anything when there is a historical bias to high rates of price changes, those make the risks for everyone higher. Increasing complexity of the economy means there are more economic gotchas as rapid changes in two or more costs make it more difficult to make rational decisions, requires many more failures to nail down the “does and don’ts”. The equivalent for individuals is the rapid evolution of careers as they receive support for reasons of particular political policies. These are operational risks and increase the failure rates for institutions, careers and lives.
We need to decentralize, which is only devolving from the pov of our central states and minions. It is empowering and evolving from the pov of the average man. Yes, local control == local sets of law. We need to depend upon localities to make their sets of law accommodating of freedom in common ways, local evolution by interaction of individuals in a locality with individuals and institutions in others. It doesn’t require a common set of laws to do that, it requires a common set of restrictions on Freedom. The one we all come to by showing each other the best example in our locality and depending on their judgement to chose ‘best working superset of Freedoms’ and implement it.
Back to reality! Reality has to be defined locally and implemented locally. They are the people with the skin in the game, they are the people to judge the effect of laws and administration.
A man is known by the sophistication of his rationalizations.